Madras High Court
)R.Pappathi vs K.Subramaniyan on 10 March, 2021
Author: J.Nisha Banu
Bench: J.Nisha Banu
CRP(MD)No.247 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.247 of 2021
and
CMP(MD)No.1477 of 2021
1)R.Pappathi
2)S.Balamurugan
3)S.Balasubramanian
4)S.Balakumar ... Petitioners
vs.
K.Subramaniyan ... Respondent
Petition filed under Section 115 of the Civil Procedure Code,
against the fair and executable order dated 20.03.2020 made in E.A.No.
35/2020 in E.P.No.126/2019 in O.S.No.150/2004 on the file of the
Additional District Munsif, Madurai Town.
For Petitioners : Mr.R.Suriyanarayanan
For Respondent : Mr.V.OM.Prakash
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CRP(MD)No.247 of 2021
ORDER
This revision petition has been filed against the fair and executable order dated 20.03.2020 made in E.A.No.35/2020 in E.P.No.126/2019 in O.S.No.150/2004 on the file of the Additional District Munsif, Madurai Town.
2.The respondent as plaintiff filed O.S.No.150/2004 for mandatory injunction against the revision petitioners/defendants for removing the alleged encroachment in the suit property which is a pathway. The said suit was decreed on 26.08.2014 directing the petitioners to remove the encroached portion in the suit property. The respondent filed E.P.No. 126/2019 for executing the decree passed in the suit and the petitioners filed E.A.No.35/2020 to dismiss the E.P. The Court below dismissed the E.A. Aggrieved by the same, the petitioners/defendants have filed this revision petition.
3.The learned counsel for the petitioners has made arguments on three fold. Firstly, he would state that the respondent has obtained a decree of mandatory injunction, but filed the above EP under Order 21 2/8 http://www.judis.nic.in CRP(MD)No.247 of 2021 Rule 35 CPC, which is only applicable for executing the decree for recovery of possession and not for mandatory injunction. Secondly, the decree for removing the encroachment contains only the width of the southern wall of the petitioners' house and the length of the alleged encroachment has not been stated and therefore, the decree is in- executable. Lastly, he would state that when the decree in the suit was passed on 26.08.2014, E.P has been filed in 2019 which is clearly barred by limitation, as E.P should have been filed within 3 years as per Article 135 of the Limitation Act. Thus, he would pray for setting aside the impugned order.
4.Heard the learned counsel for the petitioners as well as the respondent.
5.Perusal of record shows that as regards the maintainability of E.P., the Court below has held that only because of a wrong provision mentioned by the party, the same by itself would not be a ground to hold that the application was not maintainable. As far as the second ground of attack that there is no mentioning of length and only width of the 3/8 http://www.judis.nic.in CRP(MD)No.247 of 2021 southern wall of the petitioners' house has been stated, as such, the decree is in-executable one, the Court below has held that the executing court cannot go behind the decree, nor can it question its legality and the executing court cannot sit in appeal over the decree passed by the Court nor can pass an order affecting the rights of the parties already settled under the decree, as the remedy of appeal is always available to the aggrieved party to question the decree, but in this case, the appeal and second appeal and further appeal before the Hon'ble Supreme Court ended against the revision petitioners. Considering the last ground that the E.P is barred by limitation, the Court below has relied on the judgment produced by the respondent in AIR 2002 Kerala 146 that limitation starts from the date of the appellate court decree and not from the date of trial court decree and has held that after the dismissal of the appeal suit on 09.08.2018, the respondent/plaintiff filed E.P on 23.04.2019 and pending E.P., the second appeal filed by the petitioners was dismissed on 21.08.2019 and therefore, the Court below held that the E.P was well within the period of limitation. Therefore, the Court below dismissed E.A.No.35/2020, where I do not find any infirmity. 4/8 http://www.judis.nic.in CRP(MD)No.247 of 2021
6.Even when this revision petition came up for admission on 18.02.2021, the petitioners were advised to remove the encroached portion and the learned counsel for the petitioners sought time. Thereafter, on 24.02.2021, this Court has passed the following order:-
''When the matter was taken up for admission on 18.02.2021, the petitioners were advised to remove the encroached portion in the southern wall as per the judgment and decree dated 26.08.2014 made in O.S.No.150 of 2014 on the file of the Additional District Munsif, Madurai Town, for which, the learned counsel for the petitioners sought time up to 24.02.2021 to remove the encroached portion.
2.Today, when the matter is taken up for hearing, the learned counsel for the petitioners filed an undertaking affidavit stating that since the encroached portion is southern wall of their two storey house and hence, it requires the Engineer to remove it without any collateral damage to the entire building. Therefore, he needs another two weeks time to comply with the order of the Court.
3.The learned counsel for the respondent has no objection to extend the time. He would submit that the removal of encroachment has to be done with the supervision of the Court Amin, Surveyor and V.A.O. as per order in E.P.No.126 of 2019 on the file of the Additional District Munsif, Madurai Town.
4.Heard the learned counsel for the petitioner as well as the respondent.
5.Admittedly, even according to the petitioner, since the encroached portion is southern wall of the two storied house, it requires an Engineer to remove it without any collateral damage to the entire building and therefore, he would seek two weeks time to remove the same. The Court Amin, Surveyor and the Village Administrative Officer cannot be made to be available on every day when the encroachment is removed.
After the encroachment is removed, the Court Amin, Surveyor and the Village Administrative Officer shall ascertain 5/8 http://www.judis.nic.in CRP(MD)No.247 of 2021 compliance of the order and report the same before this Court on 10.03.2021.
6.Post the matter on 10.03.2021 for reporting compliance.''
7.Today, when the matter is taken up for hearing, it is stated that the petitioners had not taken any steps to remove the encroachment as per their undertaking affidavit and the learned counsel for the petitioners sought one more month to remove the encroachment. Inspite of the undertaking affidavit undertaking to remove the encroached portion and to report compliance today, the said undertaking is not obeyed by the petitioners in letter and spirit and therefore, I am not inclined to interfere with the order passed by the learned Judge.
8.Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No
Internet : Yes / No
bala 10.03.2021
To
The Additional District Munsif,
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CRP(MD)No.247 of 2021
Madurai Town.
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CRP(MD)No.247 of 2021
J.NISHA BANU, J.
bala
ORDER MADE IN
CRP(MD)No.247 of 2021
DATED : 10.03.2021
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